The European Pact on Immigration and Asylum

The French EU Presidency is finalising a European immigration pact which seeks to balance calls for stricter control of migratory flows with respect for developing countries and the human rights of asylum seekers.

Background

French President Nicolas Sarkozy has been calling for a European 'Pact on Immigration and Asylum' ever since his election campaign in spring 2007. Indeed, migration is a priority of the French EU Presidency.

The proposed pact seeks to integrate and complement the efforts made by the EU institutions to shape a common European approach to both legal and illegal migration.

As part of those efforts, the European Commission recently introduced a proposal for a European 'Blue Card' for skilled immigrants (see EURACTIV's Links Dossier) as well as a 'Return Directive' (see EURACTIV's Links Dossier) setting EU-wide standards for sending illegal immigrants back home. The adoption of the directive, although vehemently criticised by human rights NGOs and Latin American countries, highlighted how reform of migration policies is gaining momentum within the European Parliament as well as among the 27 member states.

To complement those initiatives, The Hague Programme, adopted in November 2004 by heads of state and government, seeks to establish a Common European Asylum System with a view to adoption by 2010.

Issues

Preparing for the European Pact

French Immigration Minister Brice Hortefeux, after consulting his European counterparts earlier this year, presided over the drafting of the Pact. The text was unveiled at the Justice and Home Affairs Council Meeting in Cannes on 7-8 July 2008 and adopted by EU heads of state and government at a European summit in October.

With these developments in mind, on 17 June 2008 the European Commission published a communication entitled 'A Common Immigration Policy for Europe: Principles, Actions and Tools' and a policy plan entitled 'Asylum: an Integrated Approach to Protection across the EU'.

The communication spells out ten common principles underlying the EU's commitment to the issue. New mechanisms and instruments for the monitoring, evaluation and strengthening of migration governance throughout the 27 member states are also outlined.

The Policy Plan on Asylum, on the other hand, is a follow-up to the 2004 Hague Programme for the creation of a Common Asylum System. The document envisages the creation of solidarity mechanisms to offer adequate support to member states whose asylum systems are overburdened, at the request of southern European countries in particular.

The Commission is expected to table concrete legislative proposals in the second half of 2008 and during 2009. These must be approved by qualified majority vote in the Council and by co-decision with the European Parliament.

The Pact in detail

Global migration is a result of human and economic exchange. It can become a stimulus and a support for growth, but the changes it triggers in host societies can also become a disruptive factor and put social cohesion at risk. The European Pact on Immigration and Asylum highlights these two aspects of the phenomenon and paves the way for future action.

The Pact starts from the assumption that "the European Union […] does not have the resources to decently receive all the migrants who hope to find a better life here". It calls for better management of immigration and enhanced coordination at EU level as required by the creation of an area of free movement without internal borders.

The EU has already made notable progress towards integrated immigration policies, including the adoption of a common visa policy, the harmonisation of asylum standards and the establishment of the Frontex agency in charge of external border security.

The Pact's preamble, however, argues that these developments are insufficient, identifying five basic commitments for the development of a comprehensive EU policy on migration and asylum:

Legal migration: A comprehensive approach to legal immigration should be devised, in harmony with the needs and the capacity of each member state to receive immigrants "in a spirit of solidarity". The Pact builds upon the Blue Card initiative and the Commission's Policy Plan on Legal Migration, both of which are already in the pipeline;

Illegal migration: The centrepiece of this section is the organisation of "selective repatriation of illegal immigrants". This policy area is mainly covered by the recently adopted Return Directive. However, the Pact calls on member states to further enhance co-operation by organising joint flights for repatriation, improving readmission agreements and increasing the fight against human trafficking.

Border controls: The document focuses on the role of Frontex, the EU agency for external border security and proposes the establishment of two separate permanent bodies of command, one for southern and one for eastern member states.

Asylum policies: Member states are expected to develop common guarantees on asylum, as well as an asylum support office by 2009 and a single asylum procedure by 2010.

Foreign countries: The EU's approach to migration policy should deal with with the origin of third-country immigrants. The Pact suggests offering opportunities for legal migration tied to employment and education, but stresses the significance and benefits of circular migration.

'Solidarity and shared responsibility' rather than mass regularisations

Despite a general consensus on the French proposal, a ban on the mass regularisation of illegal immigrants had to be dropped during negotiations in Cannes in order to win the necessary support of the Spanish government.

Spain and Italy have resorted to such regularisations in the recent past. Italy's new government under Silvio Berlusconi has taken a tough stance on illegal immigration and mass regularisations. Zapatero's Spain wishes to keep the final decision on the means and procedures for regularisations within national competence.

Hortefeux rebutted allegations made by the press that the original document had been "watered down": the gist of the Pact remains the same, he insisted.

In particular, he highlighted an agreement on "mutual responsibility and solidarity" which calls on governments to systematically assess the impact of their migration and regularisation policies on other member states. In return, Mediterranean countries received reassurances of the solidarity of other EU member states when dealing with mass influxes of immigrants, primarily from Africa.

Legal migration approved, 'immigration contracts' rejected

According to the Pact, legal channels to enter Europe should be created to help member states find a balance between their need for (cheap) labour and their structural capacity to welcome and integrate immigrants.

Member states are expected to devise economic migration policies and as such become more attractive for highly qualified migrants, who tend to prefer the United States, Canada or Australia to the EU. Currently, 55% of skilled migrant labour goes to the US and only 5% to the EU. In this respect, the Pact echoes and integrates the European Commission's Blue Card proposal and Policy Plan on Legal Migration, both of which are already in the EU legislative pipeline.

Although the Pact stresses that temporary and circular migration should be prioritised, member states are also invited to establish ambitious integration objectives and pursue them through "appropriate policies".

But the idea of 'immigration contracts', presented by Hortefeux in the first drafts of the Pact, was dropped. The notion of migrants having to take compulsory language and culture classes upon arrival encountered strong opposition from the socialist-led Spanish government.

Striving for firm and fair repatriation of irregulars

The Pact largely draws and builds upon legislation contained in the recently adopted – and highly controversial - Return Directive.

The Return Directive establishes a common discipline for all member states to either expel or grant legal status to all illegally staying third-country nationals, in order to minimise grey areas. This provision is echoed by the Pact's requirement that all "irregular aliens on member states' territory must leave that territory".

To reach that end, the Pact proposes to enhance cooperation between member states and the migrants' countries of origin, with the aim of concluding readmission agreements and developing cooperation between member states themselves, including biometric identification of illegal entrants and joint repatriation flights. However, the draft Pact remains vague on the concrete aspects of such cooperation, which is left to the voluntary initiative of member states.

The call to devise incentives for the voluntary return of migrants also reflects a provision included in the Return Directive to grant migrants issued with a return order a period of seven to 30 days for "voluntary departure".

Making border controls more effective

External border controls have thus far been the responsibility of each member state. As external borders give access to an area of free movement, Mediterranean and Central European member states have been carrying out control on behalf of the entire EU.

Frontex, an EU agency headquartered in Warsaw, Poland, was established in 2005 for the management of external border security. To respond to requests for shared responsibility in managing borders, the Pact stresses the necessity to strengthen Frontex and allocate more resources to border controls. The document suggests creating specialised offices to account for different situations on the land border to the east and the sea border to the south.

Establishing a European Asylum System

The European Union has made considerable progress on the road to harmonisation of asylum regimes. Nonetheless, substantial disparities on protection grants and criteria persist among member states.

The Pact stresses the need for changes to asylum policies which should lead to the creation of a common European asylum system. Such a system would be supported by an EU asylum office, to be established in 2009, and the development of a single EU asylum policy by 2012.

The office will aim to facilitate exchange of information and cooperation between national administrations in charge of processing asylum applications. The single EU asylum policy will comprise common guarantees for asylum seekers and a shared definition of refugee status.

Creating Synergies between migration and development

Along the lines of the Pact, the organisation of legal migration and the fight against illegal immigration cannot be separated from the development of countries of origin and transit east and south of the European Union.

NGOs, international organisations and many politicians have stressed the dangers of selective economic migration. While aiming to attract the best minds to Europe, they argue that initiatives such as the EU Blue Card could worsen the brain drain phenomenon and impoverish developing countries. Moreover, they believe this could lead to a catch-22 situation: if more engineers, doctors and entrepreneurs migrate to Europe, fewer jobs for unskilled labour will be available in developing countries, leading to a further increase in migration to Europe.

The possible integration of migration and development policies must be thoroughly studied, explained Minister Hortefeux while presenting the Pact to the European Parliament last July. This will provide a safe ground on which to build initiatives supportive of circular migration and knowledge transfer. Opportunities will be then offered to workers and students willing to settle in Europe. At the same time, co-development action will be promoted to enable migrants to take part in the development of their home countries.

Positions

Jacques Barrot, the European commissioner in charge of the justice, freedom and security portfolio, said after the 7 July informal meeting of interior ministers: "We can't leave immigration in complete disorder, it has to be organised: it is necessary to have a Europe that is of course open, but a Europe with rules of the game, a Europe that remains a land of asylum, but that does that in a harmonised manner."

"There is a unanimous agreement on the principles of the pact – the objectives, presentation and structure," commented French Immigration Minister Brice Hortefeux. "The document is likely to be adopted as planned by EU heads of state and government at the European Council in October: I have full confidence in this," he added.

After significant adjustments, the Pact also received the support of the Spanish government. Interior Minister Alfredo Pérez Rubalcaba said he was "in favour of the pact, both of its principles and its nuances". Rubalcaba has expressed his hope that the Pact will be approved.

German Interior Minister Wolfgang Schäuble echoed his French and Spanish counterparts in expressing the belief that the Pact manages to strike a "perfect balance". "It does not transform the EU into a fortress, but by steering migrant flows in the world, it turns migration into an advantage," he said. Commenting on the issue of long-term illegal migrants in his country, he added that "if a person has been living [in Germany] for eight years and speaks German, their illegal status has to end at some point".

Luxembourg’s Justice Minister Luc Frieden said the pact was not about building a wall. "Europe alone can decide who should enter. We should have drawn up a pact like this 10 years ago."

German MEP Manfred Weber (EPP-ED) defined the Pact "generally desirable": "particularly in the policy field of migration a general line is necessary." However, Weber found that "the pact does not give clear answers. For example, the pact argues for a strong protection of external borders and conjoint border teams, but is not willing to transfer competences to FRONTEX."

Martin Schultz, the leader of the Socialists (PES) in the European Parliament, said his group was supportive of a common European migration and asylum policy based on sharing responsibilities between the member states and respect for human rights. The importance of legal migration should not be underestimated, he added.

The Socialists also warned that measures to contain illegal migration should be accompanied by development projects in the countries of immigration. Claudio Fava (PES, Italy) stressed that "immigration is not a European but a global phenomenon, so the EU must become a global partner, supporting development and democratisation processes." He also said that "legal immigration should be seen as positive and not placed in the same category as illegal immigration. There is also a need to link immigration and the law, if necessary by creating a new status for migrants."

ALDE leader Graham Watson voiced fears that the pact could be one-sided: "A two-speed approach to the implementation of legislation should be avoided," he said, adding: "While measures targeting illegal migration are fast-tracked, those designed to attract highly skilled foreigners and manage legal migration should not be put on the back burner."

ALDE spokesperson on migration Jeanine Hennis-Plasschaert added that "the Council has shown that it excels in making ambitious statements but at the end of the day it all comes down to the transposition of these basic commitments into concrete measures". She concluded saying that "Too often effective decision-making is hamstrung by the inability of the Member States to really work together on their mutual interests. Political courage is urgently needed."

Greens spokesperson Helmut Weixler told EURACTIV that his group was opposed to the pact insofar as it incorporates the compromise on the Return Directive. Their main criticisms concerned the possibility of 18-month retentions, the removal of children from EU territory and repatriation to the transit country.

MEP Jean Lambert (Greens/EFA, UK) welcomed the pact and its comprehensive approach; she however called on turning attention "to the more effective management of border traffic and the opening up of legal channels for migration to the EU."

Italian MEP Giusto Catania (GUE/NGL) found the French Presidency's proposal "a hypocritical Pact which favours illegality. EU migration policies are stil too distant from the real needs of European labour markets. It is based on repressive rules and on the criminalisation of migrants."

Sonia Lokku, head of the French NGO CIMADE's international cooperation department, fears that the proposal put forward by the French Presidency focuses too much on security rather than human rights and even Europe's economic needs: "Europe also needs immigrants for economic reasons," she explained. "Migrants contribute a lot to the economy and once regularised, they pay taxes and contribute to the social security system. So it is really a win-win situation."

Timeline

Spring 2008: French Immigration Minister Brice Hortefeux began tour of European capitals to agree on the outlines of the draft Immigration Pact.

17 June 2008: Commission published its Communication on 'A Common Immigration Policy for Europe: Principles, Actions and Tools'.

17 June 2008: The EU executive also published its Policy Plan on 'Asylum – an Integrated Approach to Protection Across the EU'.

7 July 2008: Draft Immigration Pact unveiled at the Justice and Home Affairs ministerial meeting in Cannes.

15 Oct. 2008: EU heads of state and government endorse the 'European Pact on Immigration and Asylum'.